It is an unfortunate situation where you entrust your family member in the hands of professional caretakers only to find out that they’ve carried out abuse, causing harm to your loved ones. Under California law, elder abuse is a serious offense and can either be a felony or misdemeanor conviction, depending on the circumstances of the case.

Ehline Law and our personal injury attorneys have helped protect the rights of the elderly and assisted family members in successfully pursuing claims against nursing homes and abusive caretakers since 2005.

Here, we will go over some of the elder abuse laws in California to create awareness of the severity of the crime and the penalties for it.

California Law and Elder Abuse

Elder abuse is a broad term that can describe all types of abuse carried out on an elderly person or a dependent adult, including the following:

• Physical abuse
• Emotional abuse
• Sexual abuse
• Financial abuse
• Neglect.

Under the criminal justice system, there are two types of abuse: misdemeanor elder abuse and felony elder abuse.

Misdemeanor Elder Abuse

To convict a defendant of misdemeanor elder abuse, the prosecutor must prove the following:

• The defendant willfully causes or permits, or with criminal negligence, subjected the elderly person to unjustifiable physical pain or mental suffering.
• The defendant’s actions could’ve endangered the life of the elderly person.
• The defendant had knowledge of or should’ve reasonably known that the victim was an elder above the age of 65.

Under criminal law, unjustifiable pain and mental suffering refer to pain and suffering that is excessive or unnecessary under the circumstances or conditions.

Felony Elder Abuse

To convict a defendant of felony elder abuse, the prosecutor must prove the following:

• The defendant willfully causes or permits, or with criminal negligence, subjected the elderly person to unjustifiable physical pain or mental suffering.
• The actions carried out by the defendant could’ve produced great bodily injury or even led to death.
• The defendant had knowledge of or should’ve reasonably known that the victim was an elder above the age of 65.

To convict the defendant of financial abuse, the prosecutor must prove that the defendant committed a financial crime (theft, embezzlement, forgery, fraud, or identity theft), the stolen property belonged to the elderly person, and the defendant was the caretaker or knew the victim was an elderly person.

What Is Willful or Criminal Negligence?

Under criminal law, willful refers to doing something or carrying out an act deliberately or on purpose. While on the other hand, criminal negligence refers to when individual acts in such a manner that shows a complete disregard for human life. Let’s look at an example.

Lyla lives with her 82-year-old mother, who suffers from physical or developmental disabilities and requires full-time care. It is Lyla’s responsibility to feed her mother, but for over a week, Lyla does not provide her mom with food and water.

Lyla’s actions cause her mother to almost die of dehydration. If the case ends up in criminal court, the facts are enough to give rise to criminal negligence. However, it is important to note that the prosecutor can charge a person with criminal negligence only when they have a legal duty to act. So, what does that mean?

Jane used to take care of her 79-year-old mother, Susan, but recently she moved out of her mother’s home and left the responsibility to her brother, John. After Susan dies of septic shock caused by neglect, the police immediately arrest Jane, charging her with elder abuse. In this case, the prosecutor cannot charge Susan with elder abuse or criminal negligence since Susan did not have a legal duty to take care of her mother after her brother John assumed those responsibilities.

Elder Abuse Laws in California

Penal Code § 187 – Murder

Any person who willfully causes or permits harm with a malicious intent leading to murder may face either of the three:

• Death
• Life without parole
• 25 years imprisonment.

Penal Code § 261 – Rape

Under the PC 261, rape is sexual intercourse carried out by anyone who is not the elderly person or the dependent adult’s spouse in the following circumstances:

• The victim has physical or mental limitations whereby they cannot give legal consent, and the perpetrator knows or reasonably knows about it.
• The perpetrator carries out sexual intercourse against the victim’s will through fear, force, or violence.
• Using anesthetics, intoxicants, or any other substance renders the victim incapable of resisting.

The penalty for rape under PC 261 for rape is a minimum of three years in prison and a maximum of eight years imprisonment.

Penal Code § 288(a), (b)(2), (c)(2) – Lewd or Lascivious Acts

PC 288 deals with a caretaker who commits lewd or lascivious acts on a dependent adult either:

• Willfully with the intent to arouse themselves or the dependent adult.
• By force, use of violence, or fear.

Suppose the caretaker willfully commits lewd or lascivious acts on the dependent adult. In that case, it can either be a misdemeanor, for which the punishment is one year in county jail, or a felony, where the caretaker can spend up to three years in state prison.

Suppose the caretaker uses force, violence, or fear to commit lewd or lascivious acts on the dependent adult. In that case, it is a felony, and the punishment ranges between five and ten years in state prison.

Penal Code § 289 – Sexual Penetration

Under PC 289, if a perpetrator carries out an act of sexual penetration against the victim’s will using force, violence, or fear or if the victim does not have the physical or mental abilities to provide legal consent, the penalty can be anywhere between three to eight years in state prison.

Penal Code § 368(b)(1), (2), (3) – Elder or Dependent Adult Abuse Leading to Great Bodily Harm or Death (Unjustifiable Physical Pain)

PC 368 deals with the situation where the perpetrator inflicts unjustifiable physical pain or mental suffering on the victim, knowing that it could cause great bodily harm to the elderly person or the dependent adult.

It also covers the caretaker who willfully causes or allows the dependent adult or the elderly person to suffer injuries or places them in a situation where it could endanger his or her person or their health.

Depending on the severity of the act, under criminal law, it could either be a misdemeanor or a felony. In case of a misdemeanor, the court could order the perpetrator to spend one year in county jail, pay a $6,000 fine, or both. If the activities carried out is a felony, the penalty is three to five years in state prison, depending on the age of the victim.

In case the incident results in the victim’s death, the defendant may receive between 5 to 7 years in state prison, depending on the victim’s age.

Penal Code § 368(c) – Elder or Dependent Adult Not Leading to Great Bodily Harm or Death

The PC 368 (c) deals with the situation where the perpetrator inflicts unjustifiable physical pain or mental suffering onto the victim under circumstances that do not produce great bodily harm or death.

It also covers the caretaker who willfully causes or allows the dependent adult or the elderly person to suffer injuries or place them in a situation that could endanger their health.

In situations where it doesn’t produce great bodily harm or death, the penalty under PC 368 (c) is a misdemeanor with six months in county jail, a $1,000 fine, or both.

Penal Code § 368(d) – Financial Abuse (Non-caretakers)

When a person who is not the caretaker of the elderly person or dependent adult commits theft, embezzlement, forgery, fraud, or identity theft of the victim’s personal property or personal identifying information, such acts may be a misdemeanor or a felony.

If the financial damage is below $950, under criminal law, it is a misdemeanor for which the defendant must spend one year in county jail, pay a $1,000 fine, or both. When the financial damage exceeds $950, and the justice system determines the act as a misdemeanor, the penalty may be a year in county jail, a 2,500 fine, or both.

However, if the justice system determines the act as a felony, the consequences are far more severe, where the defendant may have to spend up to 4 years in county jail, pay a 10,000 fine, or both.

Penal Code § 368(e) – Financial Abuse (Caretakers)

PC 368 (e) deals with financial abuse carried out by the caretakers, and the penalties are the same as mentioned in PC 368 (d).

Penal Code § 422 – Criminal Threats

When a person willfully threatens an elder or dependent adult, warning them of great bodily injury or death and causing fear in the victim for their or their family’s safety, the penalty under PC 422 for such acts varies depending on whether it is a misdemeanor or a felony.

For a misdemeanor, the penalty is one year in county jail for criminal threats, while it can be up to three years in state prison if the act is a felony.

Health & Safety Code § 1290(c) – Health and Care Violations

The Health & Safety Code deals with maintaining healthcare facilities and their compliance with standards and laws. Any healthcare facility violating the Health & Safety Code 1290 is a misdemeanor, and the penalty is 180 days in county jail, $2,500 in fines, or both.

Welfare & Institutions Code § 15630 – Failure to Report (Caretakers)

A caretaker or those who have the custody of any elder or dependent adult have the responsibility to report abuse or neglect if it comes to their attention.

If they’re aware of the abuse perpetrated on the elder or dependent adult and fails to report it, it is a misdemeanor for which they must spend six months in county jail, pay 1,000 in fines, or both. In case the failure to report the abuse leads to great bodily injury or death, they may face one year in county jail, a $5,000 fine, or both.

Can You Pursue a Civil Case for Elder Abuse/Pain or Mental Suffering?

Whether sexual, physical, or emotional abuse, an injured elder or dependent adult can pursue a civil case against the perpetrator to recover the damages caused, regardless of whether there is an ongoing criminal case. The criminal case’s outcome does not influence how the civil case may turn out.

In cases where an elder does not have the physical or mental ability to sue the perpetrator of abuse, their family members must report the crime and reach out to an experienced personal injury attorney.

Elder abuse can cause a lot of pain and suffering to the elderly and their family members, and it is important that you seek the compensation you deserve for the damages caused.

Schedule a Free Consultation with Ehline Law to Discuss Your Claims

If you are a victim of elder abuse or know someone suffering from elder abuse, contact us at (833) LETS-SUE for a free consultation, as you may be able to seek compensation.